Gavel

The Sounds of Silence: Pennsylvania’s Sutton Rule


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In Westminster Am. Ins. Co. a/s/o Androulla M. Toffalli v. Bond, No. 538 EDA 2023, 2023 Pa. Super. LEXIS 626, 2023 PA Super 272, the Superior Court of Pennsylvania (Appellate Court) recently discussed the impact of silence on the Sutton Rule with respect to the landlord, Androulla M. Toffalli (Landlord), securing insurance. After holding that the tenant, Amy S. Bond (Bond) t/a Blondie’s Salon – who leased both commercial and residential space in the building pursuant to written leases – was not an implied “co-insured” on Landlord’s insurance policy, the Appellate Court reversed the decision of the trial court.

In this case, Bond rented the ground floor of a property located in Monroe County pursuant to a written commercial lease (Commercial Lease) and operated Blondie’s salon out of the leased location. In addition, Bond rented and lived in a second-floor apartment pursuant to a residential lease (Residential Lease). Both leases required the tenants (Tenants) to obtain insurance for personal items. The leases, however, did not require Landlord to obtain fire insurance for the property.

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This entry was posted in Anti-Subrogation Rule, Landlord-Tenant, Pennsylvania, Subrogation, Sutton Doctrine and tagged , , , , .
Community

Certificates of Merit: Is Your Texas Certificate Sufficient?


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In Eric L. Davis Eng’g, Inc. v. Hegemeyer, No. 14-22-00657-CV, 2023 Tex. App. LEXIS 8899, the Court of Appeals of Texas (Court of Appeals) considered whether the plaintiffs’ certificate of merit, in support of their professional malpractice claim against the defendant engineers, adequately set forth the experience and qualifications of the expert who submitted the certificate. The defendants filed a motion to dismiss, alleging that the certificate of merit was inadequate because it failed to establish that the expert practiced in the same specific areas as the defendants in relation to the work at issue. The lower court denied the defendants’ motion. The Court of Appeals affirmed the lower court’s decision, finding that there was sufficient information for the lower court to have reasonably found that the plaintiffs’ expert practiced in the same area as the defendants.

In Hegemeyer, the plaintiffs sued Eric L. Davis Engineering, Inc. (Davis) and Kenneth L. Douglass (Douglass), alleging improper design of their home’s foundation. The plaintiffs retained Davis to design and engineer the home and Douglass prepared the plans for the home. The plans called for the installation of post-tension cables in the home’s foundation. The plaintiffs alleged that the foundation design was improper and brought professional malpractice claims against Davis and Douglass.

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This entry was posted in Certificate of Merit, Litigation, Malpractice, Texas and tagged , , , .
Product Recall

Consumer Product Safety Commission Recalls


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In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control. On December 21, 2023, the CPSC announced the following recalls related to products that present fire hazards:

  1. DGL Group Recalls Hover-1 Helix Hoverboards Due to Fire Hazard. According to the CPSC’s website, “[t]he recalled hoverboard’s lithium-ion battery can overheat, posing a fire hazard.”
  2. Klein Tools Recalls Blackfire and Klein Tools Power Stations Due to Fire and Burn Hazards. According to the CPSC’s website, “[t]he top and bottom of the internal inverter boards of the power stations can overheat, posing fire and burn hazards.”

 

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Workers’ Compensation Subrogation – Tales by the Water Cooler: Part II – We Got a New Claim, Now What?


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Brett Tishler, Partner, and Michael Abed, Associate, are back to host the newest episode of Subro Sessions. This is the second of a two-part #podcast series, entitled “Workers’ Compensation Subrogation – Tales by the Water Cooler: Part II– We Got a New Claim, Now What?” Brett and Michael are joined again by a surprise guest, Rob Caplan, Partner, to discuss a new workers’ compensation #subrogation case. Rob talks about a new loss and gives a critical look into the specifics into the investigation, experts, and other factors to determine if there is potential for recovery.

Check the all of our Subro Sessions podcast episodes.

This entry was posted in Subrogation and tagged , .
Recall Alert

Consumer Product Safety Commission Recalls


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In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control. On December 14, 2023, the CPSC announced the following recalls related to products that present fire hazards:

  1. Traeger Pellet Grills Recalls Flat Top Propane Grills Due to Fire Hazard. According to the CPSC’s website, “[t]he burner control knob can be incorrectly labeled, which can result in the grill being unintentionally left on, posing a fire hazard.”
  2. Vornado Expands Recall to Include Additional 1.75 Million Steamfast Travel Steam Irons Due to Fire, Burn and Shock Hazards. According to the CPSC’s website, “[t]he power cord can become damaged near the cord bushing, which can lead to overheating of the cord, posing fire and burn hazards. In addition, cord damage near the bushing can result in exposed copper wires, posing a shock hazard.”

 

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I Spy Claims Against Amazon


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A federal court in West Virginia recently ruled that a negligence claim could proceed against Amazon related to a spy camera used to take unsolicited photos of a teenage girl.  M.S. v. Amazon.com, Inc., No. 3:23-cv-0046, 2023 U.S. Dist. LEXIS 213236 (S.D. W. Va. Nov. 30, 2023). The negligence claim is specifically interesting for subrogation professionals as it potentially provides an additional avenue for recovery against Amazon in addition to a product liability claim.

In 2021, the plaintiff, M.S. (a minor), visited the United States as a foreign-exchange student.  During her stay, she lived with Darrel Wells, a 55-year-old man. Mr. Wells purchased a spy camera that was disguised as a bathroom towel hook on Amazon. The camera was listed for sale by an unknown third party and satisfied through the “Fulfillment by Amazon” program.  The product description showed the camera serving as a towel hook with the caption: “It won’t attract any attention[:] A very ordinary hook,” as shown in the photo below from the pleading.

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This entry was posted in Negligence, Products Liability, Subrogation, West Virginia and tagged , , , , , .

Consumer Product Safety Commission Recalls


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In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control. On December 7, 2023, the CPSC announced the following recalls related to products that present fire hazards:

  1. Bunkhouse and Lotsa LITES! Mini String Lights Recalled Due to Burn and Fire Hazards; Imported by DM Merchandising (Recall Alert). According to the CPSC’s website, “[t]he bulbs can overheat when the string lights are plugged directly into an outlet, presenting burn and fire hazards.”
  2. Segway Powersports Recalls 2022 Fugleman UT10E and UT10X Utility-Terrain Vehicles Due to Fire Hazard (Recall Alert). According to the CPSC’s website, “[t]he ignition coil can fail to ignite one of the engine cylinders, allowing uncombusted fuel to enter the exhaust pipe where it could ignite, posing a fire hazard.”
  3. Nap Queen Maxima Hybrid Mattresses Recalled by Adven Group Due to Fire Hazard; Violation of Federal Flammability Standard. According to the CPSC’s website, “[t]he mattresses fail to meet the mandatory federal flammability standard for mattresses, posing a fire hazard.”
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Wyoming Supreme Court Picks a Side After Reviewing the Sutton Rule


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In a matter of first impression, the Supreme Court of Wyoming (Supreme Court), in West American Insurance Company v. Black Dog Consulting Inc., No. S-23-0052, 2023 WY 109, 2023 Wyo. LEXIS 111, examined whether a landlord’s insurer could pursue a subrogation claim against a tenant who caused a fire loss. The Supreme Court, applying a case-by-case approach, found that the insurer could not subrogate against the tenant.

West American Insurance Company (West) insured Profile Properties (Profile), which owned commercial property in Cheyenne, Wyoming. Black Dog Consulting Inc., d/b/a C.H. Yarber (Yarber) leased commercial space from Profile where it operated a metal fabrication business. The lease agreement between Profile and Yarber required Yarber to pay the full expense of Profile’s blanket insurance policy, which included general commercial liability insurance and fire and extended coverage insurance on the building.

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This entry was posted in Anti-Subrogation Rule, Landlord-Tenant, Sutton Doctrine, Wyoming and tagged .

Berkshire Blanket & Home Company Recalls Heated Throws and Blankets


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In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control. On November 30, 2023, the CPSC announced the following recall related to a product that presents a fire hazard:

Berkshire Blanket & Home Company Recalls Heated Throws and Blankets Due to Fire and Thermal Burn Hazards.

According to the CPSC’s website, “[t]he electric throws and blankets may overheat, posing fire and burn hazards.”

Product images from the CPSC website are set forth below:

 

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Product Recall

Lenovo Recalls USB-C Laptop Power Banks


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In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control. On November 22, 2023, the CPSC announced the following recall related to a product that presents a fire hazard:

Lenovo Recalls USB-C Laptop Power Banks Due to Fire Hazard.

According to the CPSC’s website, “[t]he power bank’s internal screws can come loose, causing a short circuit and overheating of the lithium-ion battery, posing a fire hazard. Do not put lithium-ion batteries in the trash or battery recycling boxes found at various retail and home improvement stores. They can cause fires and explosions if they are damaged or crushed and are a hazard when thrown in the trash.”

Product images from the CPSC website are set forth below:

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